F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

JAN 10 2003

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
RICKY WALLGREN,

No. 02-6107
D.C. No. CIV-98-1607-M
& CR-97-85-M
(W.D. Oklahoma)

Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL, LUCERO, and OBRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Ricky Wallgren files for a certificate of appealability complaining of the
district courts denial of his motion for sentencing relief under 28 U.S.C. 2255.
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*

He asserts ineffective assistance of counsel and improper sentencing. As to the

latter, he claims the court incorrectly relied on materially false information and
his immunized testimony which, under the terms of his plea agreement, could not
be used against him. He also asserts the district court erred by failing to conduct
a hearing on his motion.
Mr. Wallgren pled guilty on June 12, 1997, to a violation of 21 U.S.C.
841(a)(1), manufacturing methamphetamine with intent to distribute. He was
sentenced to 235 months imprisonment, five years supervised release, and a $100
special assessment. He filed no direct appeal. Instead, he petitioned the district
court for post-conviction relief, which the court considered without a hearing and
denied in a comprehensive order on March 1, 2002. He then applied to the
district court for a certificate of appealability, which was deemed denied when not
acted upon within thirty days of filing his notice of appeal, U.S. v. Kennedy, 225
F.3d 1187, 1193 n.3 (10th Cir. 2000), cert. denied, 532 U.S. 943 (2001). His
notice of appeal to this Court constitutes a renewed request for a certificate of
appealability. Fed. R. App. P. 22(b)(2). Exercising jurisdiction under 28 U.S.C.
2253, we see no basis for an appeal and deny his request.
Mr. Wallgren must make a substantial showing of the denial of a
constitutional right entitling him to a certificate of appealability. 28 U.S.C.

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2253(c)(2). He must demonstrate that reasonable jurists could debate whether . .

. the issues presented [are] adequate to deserve encouragement to proceed
further. Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and
citation omitted). We review the denial of an evidentiary hearing on a 28 U.S.C.
2255 petition for abuse of discretion. U.S. v. Whalen, 976 F.2d 1346, 1348
(10th Cir. 1992).
Exercising its discretion and relying on 28 U.S.C. 2255, 1 the district court
denied the petition without conducting an evidentiary hearing. See also Kennedy,
225 F.3d at 1193. The district court followed the preferred practice we
described in United States v. Marr, 856 F.2d 1471, 1472-73 (10th Cir. 1988), to
thoroughly set out its reasoning in aid of appellate review. Because all of Mr.
Wallgrens allegations were capable of review from the record of the proceedings
alone, the district court did not abuse its discretion in denying an evidentiary
hearing. Cf. Machibroda v. United States, 368 U.S. 487, 494-95 (1962)
(upholding the right to an evidentiary hearing in a 28 U.S.C. 2255 case where
the allegations related to matters outside the record).
In reviewing this application for a certificate of appealability, we treat all
issues raised by Mr. Wallgren as constituent parts of his general allegation of
28 U.S.C. 2255 reads in pertinent part: Unless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief,
the court shall . . . grant a prompt hearing . . . .
1

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ineffective assistance of counsel even though not always so framed. Effectiveness

of counsel is determined by applying a two part test: (1) counsel must have
committed errors so serious as to fall outside the kind of functioning required by
the Sixth Amendment, and (2) the defendant must show the deficient performance
prejudiced the defense in such a fashion as to call into question the reliability of
the proceedings. Strickland v. Washington, 466 U.S. 668, 687 (1984). We will not
indulge hindsight in evaluating counsels effectiveness, but will apply a strong
presumption that counsels conduct falls within the wide range of reasonable
professional assistance and sound trial strategy. Strickland, 466 U.S. at 689.
Mr. Wallgren complains his trial attorney failed to review with him the
contents and importance of the Presentence Investigation Report. As a
consequence, Mr. Wallgren believes he was unable to inform his attorney of
underlying facts and circumstances that would have enabled his attorney to
effectively challenge the calculation of his sentence. According to his attorney,
however, he and Mr. Wallgren did review the report and adopted a strategy
calculated to obtain the greatest benefit from an expected government motion for
downward departure from the sentencing guidelines based upon his cooperation
with authorities. According to the attorneys sworn affidavit, the plan was for Mr.
Wallgren to accept responsibility and not contest immaterial inaccuracies in the
report.
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The Presentence Investigation Report is replete with prima facie evidence to

support the debit and credit points attributed to Mr. Wallgren and requires no
further discussion. If there were material inaccuracies in the report leading to an
inappropriate profile under the sentencing guidelines, including Mr. Wallgrens
allegation of misuse of immunized testimony, or if the strategic decision to not
address these issues was misplaced, it was incumbent upon Mr. Wallgren to bring
this to the attention of his attorney and the court. These were matters within his
singular knowledge. Instead, he told the court under oath he had reviewed the
report with his attorney and had no objection to it. The truth and accuracy of
[defendants] statements are regarded as conclusive in the absence of a believable
reason justifying departure from their apparent truth. United States v. Bambulas,
571 F.2d 525, 526 (10th Cir. 1978).
Finding no deficient performance under Strickland, we need not address the
prejudice component of the test for effectiveness of counsel. There being no
demonstration of the denial of a constitutional right, reasonable jurists could not
debate whether Mr. Wallgren ought to proceed further. Accordingly, we deny the
request for a certificate of appealability and DISMISS the case.

Entered by the Court:

TERRENCE L. OBRIEN
United States Circuit Judge
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